IN THE COURT OF APPEALS OF IOWA
No. 18

- 2203 Filed April 1, 2020
STATE OF IOWA, Plaintiff

- Appellee,

vs. ELMER SCHECKEL , Defendant

- Appellant.

________________________________________________________________ Appeal from the Iowa District Court for Fayette County, Richard D. Stochl , Judge.

Elmer Scheckel appeals following his Alford plea to third

- degree fraudulent practice. CONVICTION AFFIRMED AND REMANDED.

John J. Sullivan of Su llivan Law Office, P.C. , Oelwein , for appellant. Thomas J. Miller, Attorney General, and Martha E. Trout , Assistant Attorney General, for appellee.

Considered by Bower, C.J. , Ahlers, J., and Gamble, S.J. * *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2020).2

GAMBLE , Senior Judge

. Elmer Scheckel appeals following his Alford plea to third

- degree fraudulent practice. 1 We affirm. Scheckel argues he received ineffective assistance of counsel 2 because he claims counsel permitted him to plead guilty without a factual basis to support the plea. 3 We review ineffective

- assistance claims de novo. State v. Straw , 709 N.W.2d 128, 133 (Iowa 2006). Generally, ineffective

- assistance claims ar e

1 We recognize Iowa Code section 814.6 (2019) was recently amended to prohibit most appeals from guilty pleas. See 2019 Iowa Acts ch. 140, § 28. In State v. Macke , however, our supreme court held these amendments “apply only prospectively and do not apply to cases pending on July 1, 2019.” 933 N.W.2d 226, 235 (Iowa 2019)

. Because this appeal was pending on July 1, 2019, the amendments “do not apply” to this case. See id

. 2 Iowa Code section 814.7 was recently amended to provide in pertinent part: “An ineffective assistance of counsel claim in a criminal case shall be determined by filing an application for postconviction relief” and “shall not be decided on direct appeal from the criminal proceedings.” See 2019 Iowa Acts ch. 140, § 31. In Macke , however, our supreme court held the amendment “ appl[ies] only prospectively and do[es] not apply to cases pending on July 1, 2019.” 933 N.W.2d at 235

. Because this appeal was pending on July 1, 2019, the amendments “do not apply” to this case. See id

. 3 Several times over the pendency of this case, the district court stated Scheckel elected to proceed pro se with stand

- by counsel available. But Scheckel never waived his right to counsel through the constitutionally required colloquy , so his right to effective counsel remained. Cf. Hannan v. State , 732 N.W.2d 45, 52

– 53 (Iowa 2007). Essentially, Scheckel and defense counsel engaged in a hybrid

representation relationship over most of this case

. See State v. Dawson , No. 18

- 0862, 2019 WL 5792566, at *2 n.2 (Iowa Ct. App. Nov. 6, 2019) (“ Hybrid represe ntation is when a defendant partially represents himself but also has the benefit of counsel.”). B ut with respect to the plea proceedings, counsel actively represented Scheckel, and Scheckel relied on counsel throughout the plea process

. Because Scheckel’s conduct reasonably appears to have waived any purported invocation of his right to self

- representation, we conclude he was represented by counsel during the plea proceedings for purposes of Scheckel’s ineffective

- assistance claim. Cf. State v. Spencer , 519 N.W.2d 357, 359 (Iowa 1994).3

preserved for postconviction relief so the record can be fully developed. Id. But when the record is adequate, the claim may be resolved on direct appeal. Id. To succeed on his ineffective

- assistance claim, Scheckel must prove by a preponderance of the evidence that counsel failed to perform an essential duty and constitutional prejudice resulted. State v. Walker , 935 N.W.2d 874, 881 (Iowa 2019). “Because the test for ineffective assistance of counsel is a two

- pronged test, [Scheckel] must show bo th prongs have been met.” Nguyen v. State , 878 N.W.2d 744, 754 (Iowa 2016). If Scheckel cannot prove either prong, we need not
address the other. See id. In substance, Scheckel does not challenge the factual basis supporting the charge for third

- degree fraudulent practice. Instead, he highlights a scrivener’s error; the charging instrument, plea agreement, and judgment order cited the incorrect subsection to Iowa Code section 422.25 (2013). Scheckel was convicted of fraudulent practice in the third d egree , in violation of Iowa Code section 714.8(10) . Section 714.8(10) provides a person is guilty of fraudulent practice by doing “any act expressly declared to be a fraudulent practice by any other section of the Code.” S ection 422.25(5) provides:
A person or withholding agent required to supply information, to pay tax, or to make, sign, or file a deposit form or return required by this division, who willfully makes a false or fraudulent deposit form or return, or willfully fails to pay the tax, suppl y the information, or make, sign, or file the deposit form or return, at the time or times required by law, is guilty of a fraudulent practice. Section 422.25 (5) expressly defines failure to pay taxes as a fraudulent practice as required by section 714.8( 10)

. While this is the offense Scheckel pled to, the charging instrument, plea agreement, and judgment order mistakenly referred to4

subsection (1) of section 422.25 (discussing the statute of limitations) instead of subsection (5).
Nevertheless , the reco rd contains a sufficient factual basis to find Scheckel committed fraudulent practice because he failed to pay his taxes. And it was apparent from the plea colloquy that Scheck el was aware he was pleading to third

degree fraudulent practice because he fai led to pay his taxes. Moreover, the written plea provided, I understand that in order to establish my guilt the State would have to prove beyond a reasonable doubt all of the following elements of the offense of Fraudulent Practice in the third d egree, an aggravated misdemeanor: That in Fayette County, on or about the dates alleged in the t rial information , I was a person required to supply information, to pay tax or to make, sign, or file a tax return as required by the Iowa Department of Revenue and I willfully failed to pay such tax, supply the information, or to make, sign, or file a tax return at the time required by law

. 

### I plead guilty because I know I am guilty. I did the following to commit this crime, in Fayette County, on or about the dates al le ged in the t rial i nformation, I was a person required to supply information, to pay tax or to make, sign, or file a tax return as required by the Iowa Department of Revenue and I willfully failed to pay such tax, supply the information, or to make, sign, or file a tax return at the time required by law

. We conclude counsel was not ineffective for failing to object to the fact ual basis. The reference to subsection (1) of section 422.25 is merely a scrivener’s error that can be corrected by entry of a nun c pro tunc order. See State v. Hess , 533 N.W.2d 525, 527 (Iowa 1995) (“ An error is clerical in nature if it is not the product of judicial reasoning and determination.

. . . [ W] hen the record unambiguously reflects that a clerical error has occurred, we will direct the district
court to enter a nunc pro tunc order to correct the judgment entry .”)

. Therefore, we affirm Scheck el ’s conviction for third

- degree fraudulent practice an d remand5

for entry of a nunc pro tunc order to correct the cited c ode subsection from
section 422.25(1) to section 422.25(5). Scheckel also raises several pro se issues on appeal. 4 However, S checkel
waived “constitutional challenge [s] that would undermine [his] conviction ” by pleading guilty. See State v. Mann , 602 N.W.2d 785, 789 (Iowa 1999). Nonetheless, there are five claims a defendant may bring on appeal following a guilty plea. See State v. LaRue , 619 N.W.2d 395, 397 (Iowa 200 0) (providing a defendant may (1) challenge the sufficiency of the trial information or facial constitutional vagueness of the relevant statutes; (2) claim his plea was uninformed or involuntary; (3) assert a double jeopardy claim; (4) challenge the
senten cing statute; or (5) claim counsel was ineffective). We addressed a portion of Scheckel’s ineffectiv e - assistance claim above. The record is not sufficiently developed to address on direct appeal Scheckel’s claim that counsel was ineffective by providing incorrect information

. This claim is preserved for postconviction

- relief proceedings. To the extent Scheckel challenges the sufficiency of the trial information, he fails. The trial information substantively charged a criminal offense. The district co urt correctly overruled Scheckel’s motions to dismiss.

4 Iowa Code section 814.6A(1) was recently enacted to prohibit defendants from filing pro se supplemental briefs. See 2019 Iowa Acts ch. 140, § 30. Although our supreme court has not squarely addressed this change, this court has applied the reasoning from Macke , 933 N.W.2d at 227

– 28 , and determined it does not apply to appeals filed prior to July 1, 2019. See, e.g. , State v. Levy , No. 18

- 0511, 2020 WL 567696, at *1 n.1 (Iowa Ct. App. Feb. 5, 2020); Sta te v. Syperda , No. 18

- 1471, 2019 WL 6893791, at *12 (Iowa Ct. App. Dec. 18, 2019); State v. Purk , No. 18

- 0208, 2019 WL 5790875, at *7 n.8 (Iowa Ct. App. Nov. 6, 201 9 )

.6 To the extent Scheckel challenges the plea itself, he waived any challenges by failing to file a motion in arrest of judgment. Cf. State v. Delacy , 907 N.W.2d 154, 158

– 59 (Iowa Ct. App. 2017) (not ing a plea may only be challenged through a motion in arrest of judgment so long as the defendant is informed of this requirement or through a claim of ineffective assistance of counsel).
T o the extent Scheckel claims the district court erred in “not cha rging the prosecution with perjury and malicious prosecution,” his claim h as no merit. The county attorney or the attorney general , not the district court, has the authority to commence or prosecute legal actions in the State’s name. See Iowa Code § 331.756(1). Further, the record reveals no grounds for any such charge. Therefore, we affirm Scheckel’s conviction and remand for entry of a nunc pro tunc order correcting the judgment entr y to reflect Scheckel’s conviction of fraudulent pra ctice in the third degree in violation of Iowa Code sections 422.25(5), 714.8(10), and 714.11. CONVICTION AFFIRMED AND REMANDED.